BANK OF SOUTH CAROLINA CORPORATION Board Approved January 15, 1998 Shareholder Approved April 14, 1998 Effective April 14, 1998
EXHIBIT
10.4
BANK OF
SOUTH CAROLINA CORPORATION
1998
OMNIBUS STOCK INCENTIVE PLAN
Board
Approved January 15, 1998
Shareholder
Approved April 14, 1998
Effective
April 14, 1998
BANK
OF SOUTH CAROLINA CORPORATION
1998 OMNIBUS STOCK INCENTIVE
PLAN
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1.01
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Agreement means
a written agreement (including any amendment or supplement thereto)
between BKSC and a Participant specifying the terms and conditions of an
award of an Option granted to such
Participant.
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1.02
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Code means the
Internal Revenue Code of 1986, as
amended.
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1.03
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Board means the
Board of Directors of BKSC.
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1.04
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Date of
Exercise means the date that the Option price is received by
BKSC.
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1.05
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Fair Market
Value means, on any given date, the closing price of BKSC common
stock as reported on the Nasdaq Small Capitalization Market. If
BKSC common stock was not traded on the Nasdaq Small Capitalization Market
on such date, then Fair Market
Value is determined with reference to the next preceding day that
BKSC common stock was so traded.
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1.06
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Legal
Disability means that a Participant is permanently and totally
disabled within the meaning of Code section
22(e)(3).
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1.07
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Plan means the
Bank of South Carolina Corporation 1998 Omnibus Stock Incentive
Plan.
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1.08
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Retirement
means that a Participant has separated from service on or after his
earliest early retirement date under The Bank of South Carolina Employee
Stock Ownership Plan and Trust or such tax-qualified pension or profit
sharing plan maintained by BKSC or a Subsidiary in which he
participates.
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1.09
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BKSC means Bank
of South Carolina Corporation.
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1.10
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BKSC Common
Stock means the common stock, no par value, of
BKSC.
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1.11
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Option means a
stock option that entitles the holder to purchase from BKSC a stated
number of shares of BKSC common stock at the price set forth in an
Agreement.
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1.12
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Participant
means an employee of BKSC or of a Subsidiary, including an employee who is
a member of the Board, or a non-employee who satisfies the requirements of
Article IV and is selected by the Committee to receive an
Option.
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ARTICLE
II
PURPOSES
The Plan
is intended to assist BKSC in recruiting and retaining employees with ability
and initiative by enabling employees to participate in its future success and to
associate their interests with those of BKSC and its
shareholders. The Plan is intended to permit the grant of both
Options qualifying under Code section 422 (“incentive stock options”) and
Options not so qualifying. No Option that is intended to be an
incentive stock option shall be invalid for failure to qualify as an incentive
stock option. The proceeds received by BKSC from the sale of BKSC
common stock pursuant to this Plan shall be used for general corporate
purposes.
ARTICLE
III
ADMINISTRATION
Except as
provided in this Article III, the Plan shall be administered by the
Committee. The Committee shall have authority to grant Options upon
such terms (not inconsistent with the provisions of this Plan) as the Committee
may consider appropriate. Such terms may include conditions (in
addition to those contained in this Plan) on the exercisability of all of any
part of an Option. Notwithstanding any such condition, the Committee
may, in its discretion, accelerate the time at which any Option may be
exercised. In addition, the Committee shall have complete authority
to interpret all provisions of this Plan; to prescribe the form of Agreements;
to adopt, amend and rescind rules and regulations pertaining to the
administration of the Plan; and to make all other determinations necessary or
advisable for the administration of this Plan. The express grant in
the Plan of any specific power to the Committee shall not be construed as
limiting any power or authority of the Committee. Any decision made,
or action taken, by the Committee or in connection with the administration of
this Plan shall be final and conclusive. No member of the Committee
shall be liable for any act done in good faith with respect to this Plan or any
Agreement or Option. All expenses of administering this Plan shall be
borne by BKSC.
The
Committee, in its discretion, may delegate to one or more officers of BKSC all
or part of the Committee’s authority and duties with respect to Participants who
are not subject to the reporting and other provisions of Section 16 of the
Securities and Exchange Act of 1934, as in effect from time to
time. In the event of such delegation, and as to matters encompassed
by the delegation, references in the Plan to the Committee shall be interpreted
as a reference to the Committee’s delegate or delegates. The
Committee may revoke or amend the terms of a delegation at any time but such
action shall not invalidate any prior actions of the Committee’s delegate or
delegates that were consistent with the terms of the Plan.
ARTICLE
IV
ELIGIBILITY
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4.01
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General. Any
employee of BKSC or of any Subsidiary (including any corporation that
becomes a Subsidiary after the adoption of this Plan) is eligible to
participate in this Plan if the Committee, in its sole discretion,
determines that such person has contributed or can be expected to
contribute to the profits or growth of BKSC or a
Subsidiary. Any such employee may be granted
Options. A Director of BKSC who is an employee of BKSC or a
Subsidiary may be granted Options under this Plan. A member of
the Committee may not participate in this Plan during the time that his
participation would prevent the Committee from being “disinterested” for
purposes of Securities and Exchange Commission Rule 16b-3 as in effect
from time to time.
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4.02
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Grants. The
Committee will designate individuals to whom Options are to be granted and
will specify the number of shares of BKSC common stock subject to each
award or grant. All Options granted under this Plan shall be
evidenced by Agreements which shall be subject to the applicable
provisions of this Plan and to such other provisions as the Committee may
adopt. No Participant may be granted incentive stock options
(under all incentive stock option plans of BKSC and its Subsidiaries)
which are first exercisable in any calendar year for stock having an
aggregate Fair Market Value (determined as of the date an option is
granted) exceeding $100,000.
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ARTICLE
V
STOCK SUBJECT TO
PLAN
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5.01
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Source of
Shares. Upon the exercise of an Option, BKSC may deliver
to the Participant authorized but unissued BKSC Common
Stock.
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5.02
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Maximum Number of
Shares. The maximum aggregate number of shares of BKSC
common stock that may be issues pursuant to the exercise of Options is One
Hundred Thousand subject to increases and adjustments as provided in this
Article V and Article XI.
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5.03
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Incentive Stock
Options. Section 5.02 to the contrary notwithstanding,
the maximum aggregate number of shares of BKSC common stock that may be
issued pursuant to the exercise of Options that are incentive stock
options granted under this Plan is One Hundred Eighty
Thousand.
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5.04
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Forfeitures,
etc. If an Option is terminated, in whole or in part,
for any reason other than its exercise, the number of shares of BKSC
common stock allocated to the Option or portion thereof may be reallocated
to other Options to be granted under this
Plan.
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ARTICLE
VI
OPTION
PRICE
The price
per share for BKSC common stock purchased on the exercise of an Option shall be
determined by the Committee on the date of grant. The price per share
for BKSC common stock purchased on the exercise of any incentive stock option
shall not be less than one hundred percent (100%) of the Fair Market Value on
the date the Option is granted.
ARTICLE
VII
EXERCISE OF
OPTIONS
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7.01
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Maximum Option
Period. The maximum period in which an Option may be
exercised shall be determined by the Committee on the date of grant except
that no Option that is an incentive stock option shall be exercisable
after the expiration of ten years from the date the Option was
granted. The terms of any Option may provide that it is
exercisable for a period less than such maximum
period.
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7.02
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Nontransferability. Any
Option granted under this Plan shall be nontransferable except
by will or by the laws of descent and distribution. In the
event of any such transfer, the Option must be transferred to the same
person or persons or entity or entities. During the lifetime of
a Participant to whom an Option is granted, the Option may be exercised
only by the Participant. No right or interest of a Participant
in any Option shall be liable for, or subject to, any lien, obligation or
liability of such Participant.
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ARTICLE
VIII
METHOD OF
EXERCISE
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8.01
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Exercise. An
Option granted under this Plan shall be deemed to have been exercised on
the Date of Exercise. Subject to the provisions of Articles VII
and X, an Option may be exercised in whole at any time or in part from
time to time at such times and in compliance with such requirements as the
Committee shall determine. An Option granted under this Plan
may be exercised with respect to any number of whole shares less than the
full number of whole shares for which the Option could be
exercised. A partial exercise of an Option shall not affect the
right to exercise the Option from time to time in accordance with this
Plan and the applicable Agreement with respect to remaining shares subject
to the Option.
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8.02
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Payment. Unless
otherwise provided by the Agreement, payment of the Option price shall be
made by Cashiers Check. If the Agreement provides, payment of
all or part of the Option price may be made by surrendering shares of BKSC
common stock to BKSC. If BKSC common stock is used to pay all
of part of the Option price, the shares surrendered must have a Fair
Market Value (determined as of the day preceding the Date of Exercise)
that is not less than such price or part
thereof.
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8.03
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Shareholder
Rights. No Participant shall have any rights as a
stockholder with respect to shares subject to an Option until the Date of
Exercise of such Option.
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ARTICLE
IX
ADJUSTMENT UPON CHANGE IN
BKSC COMMON STOCK
If all or
any portion of the Option is exercised subsequent to any stock dividend, split
up, recapitalization, combination or exchange of shares, merger, consolidation,
acquisition of property or stock, separation, reorganization, or a transaction
to which Section 424 of the Internal Revenue Code applies, or other similar
change or transaction of or by BKSC, as a result of which shares of any class
shall be issued in respect of outstanding shares of the class covered by the
Option or shares of the class covered by the Option shall be changed into the
same or a different number of shares of the same or another class or classes,
the person or persons so exercising such an Option shall receive, for the
aggregate option price payable upon such exercise of the Option, the aggregate
number and class of shares equal to the number and class of shares the Optionee
would have had on the date of exercise had the shares been purchased for the
same aggregate price at the date the Option was granted and had not been
disposed of, taking into consideration any such stock dividend, split up,
recapitalization, combination or exchange of shares, merger, consolidation,
acquisition of property or stock, separation, reorganization or other similar
change or transaction; provided, however,
that no fractional share shall be issued upon any such exercise and the
aggregate price paid shall be appropriately reduced on account of any fractional
share not issued.
ARTICLE
X
COMPLIANCE WITH LAW AND
APPROVAL OF REGULATORY BODIES
No option
shall be exercisable and no BKSC common stock shall be issued under this Plan
except in compliance with all applicable federal and state laws and regulations
(including, without limitation, withholding tax requirements) and the rules of
any domestic stock exchanges on which BKSC’s shares may be
listed. BKSC shall have the right to rely on an opinion of its
counsel as to such compliance. Any share certificate issued to
evidence BKSC common stock for which an Option is exercised may bear such
legends and statements as the Committee may deem advisable to assure compliance
with federal and state laws and regulations. No Option shall be
exercisable and no BKSC common stock shall be issued under this Plan until BKSC
has obtained such consent or approval as the Committee may deem advisable from
regulatory bodies having jurisdiction over such matters.
ARTICLE
XI
GENERAL
PROVISIONS
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13.01
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Effect on
Employment. Neither the adoption of this Plan, its
operation nor any documents describing or referring to this Plan (or any
part thereof) shall confer upon any employee any right to continue in the
employ of BKSC or a Subsidiary to terminate the employment of any employee
at any time with or without assigning a reason
therefor.
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13.02
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Rules of
Construction. Headings are given to the articles and
sections of this Plan solely as a convenience to facilitate
reference. The reference to any statute, regulation or other
provision of law shall be construed to refer to any amendment to or
successor of such provision of law.
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13.03
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Employee
Status. For purposes of determining the applicability of
Code section 422 (relating to incentive stock options) or in the event
that the terms of any Option provide that it may be exercised only during
employment or within a specified period of time after termination of
employment, the Committee may decide to what extent leaves of absence for
governmental or military service, illness, temporary disability or other
reasons shall not be deemed interruptions of continuous
employment.
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ARTICLE
XII
AMENDMENT
The Board
may amend or terminate this Plan from time to time; provided, however, that no
amendment may become effective until shareholder approval is obtained if (i) the
amendment increases the aggregate number of shares of BKSC common stock that may
be issued under the Plan or (ii) the amendment changes the class of individuals
eligible to become Participants. No amendment shall, without a
Participant’s consent, adversely affect any rights of such Participant under any
Option outstanding at the time such amendment is made.
ARTICLE
XIII
DURATION OF
PLAN
No Option
may be granted under this Plan after April 14, 2008. Options granted
before that date shall remain valid in accordance with their terms.
ARTICLE
XIV
EFFECTIVE DATE OF
PLAN
Options
may be granted under this Plan upon its adoption by the Board, provided that no
Option will be effective unless this Plan is approved by shareholders holding a
majority of BKSC’s outstanding voting stock, voting either in person or by proxy
at a duly held shareholder’s meeting within twelve months of such
adoption.
